Smt. Vidya Wanti vs Gopi Chand and Others

G.C. Garg, J.—Vidya Wanti, petitioner herein filed a suit for declaration that she is the owner in possession of the house in question. Her allegation for seeking declaration seems to be that the house in dispute fell to her share in a family settlement and, therefore, she was owner in possession thereof. Defendant 1 is the husband of the plaintiff whereas other defendants are the brothers of defendants 1 or the widow, sons and the daughters of the pre-deceased brother of defendant-1. Defendants 2 to 11 filed written statement admitting the claim of the plaintiff. Some or all the defendants also made statements before the trial Court which were reduced into writing and are signed by them admitting the claim of the plaintiff. Somehow or the other, the suit remained pending. During this period all the defendants except defendant 1 moved an application under Order 6 Rule 17 of the CPC seeking amendment of the written statement and for withdrawal of the written statement already filed.

Trial Court on a consideration of the matter and after hearing learned Counsel for the parties refused to allow defendants 2 to 11 to withdraw the written statement but granted them the permission to amend the written statement, by order dated 18.3.1992. Hence this revision at the instance of the plaintiff.

Learned Counsel for the petitioner placing reliance on a Single Bench judgment of this Court in Life Insurance Corporation of India Vs. Atam Parkash Sharma, submitted that the defendants had admitted the claim of the plaintiff not only by filing written statement in that behalf but also by making statements duly signed before the trial Court. Once the defendants had admitted the claim, the suit ought to have been decreed and the trial court acted illegally and with material irregularity in permitting defendants 2 to 11 to file the amended written statement and thereby permitting them to withdraw an admission already made.

Learned Counsel for the respondents by placing reliance on Ranjit Singh v. Dalbir Singh and Anr. 1989 (2) CLJ 710 submitted that where the written statement had been filed without instructions and the statement was also recorded wrongly by concealing the tr 3 facts of the case, this Court should not interfere with the order of the trial court allowing amendment of the written statement.

After hearing learned Counsel for the parties, I am of the opinion that defendants 2 to 11 not only admitted the claim of the plaintiff in categorical terms but also made statements which were duly signed by them in court. They have of course alleged that defendant 1 played a fraud on them and got an admission written, statement filed by them without paying them the sale consideration in respect of the property in dispute. It may or may not be so, but there is no allegation against the plaintiff in that behalf. The defendants have not been able to show as to how the admission made in the earlier written statement was wrong. An admission once made cannot be permitted to be withdrawn unless the same is shown to be erroneous or patently wrong. In the present case, this admission has not been explained away by showing one such fact. The only broad allegation is that a fraud was played upon defendants 2 to 11 by defendant 1. There is nothing on record in that behalf. Thus the view taken by the learned trial court cannot be sustained. The revision petition is consequently allowed and the order under revision is set aside.

There is, however, another aspect of the case. Even if the defendants admitted the claim of the plaintiff, it did not mean that the plaintiff would automatically be entitled to a decree. The plaintiff alleged in the suit seeking a declaration that the property belonging to her father-in-law fell to her share in family settlement. On this allegation, the suit apparently cannot be decreed as the plaintiff was not entitled to a share being not a member of the coparcenary and especially during the life time of her husband. Faced with this situation, learned Counsel for the plaintiff-petitoner submitted that in fact there may be other circumstances entitling the plaintiff to the declaration, namely, will, gift or even adverse possession and, therefore, this Court may not go into this question in the abstract. It is true that the plaintiff may be able to show some cause to seek a declaration before the trial court but the trial court while considering the merits of the case shall have in mind the decision of this court in Ganeshi v. Smt. Rajwan and Anr. 1985 P.L.J. 435 and of the Supreme Court in Bhoop Singh Vs. Ram Singh Major and others, . Parties through their counsel are directed to appear in the trial Court on 2.11.1998. The trial Court shall now dispose of the matter in accordance with law at an early date.